1. Constitutional Protection of
Economic, Social and Cultural
Rights: Ireland and Beyond
Dr Conor O’Mahony
Lecturer in Constitutional Law
University College Cork

2. Constitutional Rights
• Usually civil and political (freedoms)
• Economic and social usually excluded
• Capitalist system – incentive
• Democratic accountability for use of public
funds
• Courts not well placed to balance competing
demands

3. Constitutions Globally
• US: no economic and social rights
• Ireland: economic and social rights mostly
non-justiciable (Art 45)
 Approach followed by India
• South Africa: numerous enforceable economic
and social rights

4. Constitution of Ireland 1937
• Economic and social rights set out in Article
45: Directive Principles of Social Policy
• “…care of the Oireachtas exclusively”
• “…shall not be cognisable by any Court under
any of the provisions of this Constitution”
 In simple terms: you cannot take Article 45 to
court

5. Constitution of Ireland 1937
• Article 42.4: “The State shall provide for free
primary education…”
• Article 42A.2.1 (formerly Article 42.5): “In
exceptional cases, where where the parents…fail
in their duty towards their children to such
extent that the safety or welfare of any of their
children is likely to be prejudicially affected, the
State…shall…endeavour to supply the place of
the parents…”

6. Enforcing Article 42
• Articles 42.4 and 42.5 are enforceable
• Case law from mid-1990s
• Children with special educational needs
• Children with severe behavioural disorders
 Courts found that the State was
constitutionally obliged to make provision
suitable to meet their needs

7. Enforcing Article 42
• Damages: financial compensation for injury or
loss suffered
• Declaratory relief: court declares a breach of
rights  up to executive to respond
appropriately
• Mandatory order: court orders executive to
take specified steps to vindicate rights

8. Enforcing Article 42
• Damages: retrospective only – do not secure
future vindication
• Declaratory relief: ignored by executive in
series of cases after FN v Min for Ed (1995)
• Mandatory order: finally granted by Kelly J in
the High Court in DB v Min for Justice (1999)
and TD v Min for Ed (2000)

9. Enforcing Article 42
• 2001: Sup Court overturned TD v Min for Ed
• Held mandatory orders involved the court in
resource allocation and policy formation
• Breach of the separation of powers
• Mandatory orders only permissible where
there is “a conscious and deliberate decision
by the organ of State to act in breach of its
constitutional obligation…accompanied by
bad faith or recklessness”

10. Constitution of South Africa 1996
• Sections 26-29: socio-economic rights
(housing, healthcare, food, water, education)
• State under obligation to take “reasonable
legislative and other measures within its
available resources to secure progressive
realisation” of these rights
• First Certification Judgment (1996): Const
Court confirmed that rights are justiciable –
separation of powers no bar

11. Grootbroom (2000)
• Right to adequate housing  focus on the
reasonableness of overall State policy
• No individual entitlement to a house – but
failure of Govt to devise plans for emergency
shelter unreasonable
• Declaration granted that Govt was obliged to
formulate such a policy

12. Soobramoney (1997)
• Right to healthcare – access to life-saving
dialysis treatment
• Applicant did not qualify under hospital
criteria
• Criteria found to be reasonable and consistent
with constitutional values when allocating
scarce resources
• Focus on larger needs of society rather than
claims of individuals

13. Treatment Action Campaign (2002)
• Healthcare: access to treatment to prevent HIV
being transmitted from pregnant mothers to
babies
• No cost issue – manufacturer supplying free
• “Minimum core” argument rejected
• Govt wanted to pilot for 2 years
• Held unreasonable – no cost – thousands of lives
would be saved
• Court willing to grant mandatory order to enforce

14. Mazibuko (2009)
• Access to water – argued for a 50 litres per
person per day minimum
• “Minimum core” again rejected – duty is to
take reasonable measures towards
progressive realisation
• Up to legislature and executive to determine
these measures
• Must keep policies under review

15. Comparison
• Ireland:
– Mostly unenforceable, apart from education
– Minimum core to individual right to education
– Damages and declarations possible
– Mandatory orders not
• South Africa:
– Broad range of economic and social rights
– No minimum core
– Reasonable measures towards progressive realisation
– Mandatory orders possible if policy unreasonable

16. Conclusion
• Economic and social rights only as enforceable
as the courts are willing and able to make
them
• Ireland: individualistic approach – absence of
mandatory orders a problem – but
declarations have still achieved much
• South Africa: focus more on the big picture –
more realistic when resources are more
scarce